New Year, New Automatic Extensions for Employment Authorization Documents (EADs)

By Maureen James - Skoler Abbott P.C.

December 24, 2024

Employers must ensure that all employees are authorized to work in the United States. For those who do not have U.S. citizenship, an Employment Authorization Document (EAD) is evidence of authorization to work in the United States for a specific period of time.  For those individuals who utilize EADs, historically, they would be required to maintain a valid EAD.  To do so, they would have to apply for and obtain an extension prior to its expiration to remain eligible to work.  Several years ago, the Department of Homeland Security (DHS) began issuing rules for temporary automatic extensions to some categories of EADs.  These extensions allowed eligible people to continue working under their existing EAD without the fear of becoming ineligible to work while their request for an extension being delayed in paperwork backlogs.

On December 10, 2024, DHS announced a final rule “permanently increasing the automatic extension period of employment authorization and employment authorization documentation from up to 180 days to up to 540 days for eligible noncitizens who file a timely request to renew their work authorization.”  This rule will become effective on January 13, 2025 for those who timely filed renewal applications for their EAD on or after May 4, 2022, or whose applications were pending on that date, and before October 1, 2025.  The criteria for qualification for the automatic extension are:

•  The Form I-797C, Notice of Action, receipt notice you received for your pending Form I-765 renewal application has a “Received Date” that is before the “Card Expires” date shown on the face of your EAD;
•  The Form I-797C, Notice of Action, receipt notice has a “Received Date” on or after May 4, 2022, and on or before Sept. 30, 2025;
•  Your renewal application is under a category that is eligible for an automatic extension…; and
•  The category on your current EAD matches the “Eligibility Category” or “Class Requested” listed on your Form I-797C, Notice of Action, receipt notice.

Not all categories are eligible for the automatic extension and U.S. Citizenship and Immigration Services (USCIS) has compiled a complete list.  If the employee’s category is covered by the automatic extension rule, and meets the criteria above, their EAD does not expire on the date printed and will be subject to an automatic extension.  The new expiration date for the EAD under the extension can be officially calculated using an online tool created by USCIS.

A rule allowing automatic extensions is a huge benefit to employers, as it allows employees to remain eligible for employment and not to disqualify them because their paperwork is still processing.  Employers should be mindful of documenting such extensions properly on Employment Eligibility Verification forms (I-9s).  USCIS advises that for new employees, employers should complete their I-9 with the following information:

Section 1 as follows:

•  Select “A noncitizen authorized to work until;” and
•  Enter the date that is 540 days from the “Card Expires” date on the EAD as the expiration date of employment authorization. Employees whose status does not expire, such as refugees or asylees, should enter “N/A” as the expiration date.

In Section 2, in the List A column, the employer must:

•  Enter “EAD” in the Document Title field.
•  Enter the Card Number from the EAD in the Document Number field.
•  In the Expiration Date field, enter the date 540 days from the “Card Expires” date on the EAD if the “Received Date” on Form I-797C is between May 4, 2022, and Sept. 30, 2025.

For automatic extensions the employer should enter “EAD EXT” in the Additional Information field.

If a current employee is subject to the extension and presents a I-797C, Notice of Action, the employer should update their I-9 to contain the automatic extension expiration date in Section 2 under Additional Information along with “EAD EXT”.  It is also recommended that a copy of the USCIS webpage describing the extension be kept with the employee’s I-9.  If upon updating the employer learns that the I-9 form is no longer valid, the employer should enter this information on the current version of the I-9 and retain it along with the employee’s original form.  For additional information regarding other types of employees, or employees with specific categories of EADs, employers should refer to USCIS’s Handbook for Employers M-274, Section 5.0 Automatic Extensions of Employment Authorization and/or Employment Authorization Documents (EADs) in Certain Circumstances.

If your company has questions regarding employment eligibility, extensions of EADs, or completing documentation including I-9s, it is important to consult your immigration and employment counsel for guidance.

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